{1}Only a fool would question the role and relevance of Internet
Service Providers in promoting the Internet. But, unfortunately,
Internet Service Providers ("ISPs") are at the receiving
end of many disputes involving Intellectual Property violations.
The difficulty in pinpointing the real culprit has resulted in
a piquant situation where the Internet Service Provider is often
taken to court. United States' courts and courts of other advanced
countries have confronted this issue since 1993 and have finally
enacted specific legislation to solve this mind-boggling issue.
The Indian Information Technology Act 2000 ("The Act"),
enacted with much hype, is almost silent on this issue. Although
it includes a sentence or two about ISP liability, the picture
on this issue is a vague one.

{2}This paper attempts to evaluate the ISP picture in the U.S.
before the Digital Millennium Copyright Act and passage of The
Act. The position in Australia, including the most recent Act
is also examined. The situation in Canada, (yet to enact a specific
act), and that in Singapore, (the first country in Asia to enact
such a law), are briefly mentioned. Finally, the latent defects
in the latest Indian Law are analyzed, and some suggestions are
made.

{3}The Internet with which we are all familiar is a gigantic network of computer
networks. As we look back upon the late twentieth century, the evolution of
the Internet will undoubtedly be listed as one of mankind's greatest technological
achievements. The amazing capability of the Internet to promote the exchange
of knowledge, information, and ideas on a universal scale has surely revamped
the way people interact. The greatest advantage of this medium is its ability
to enable people around the planet to obtain great quantities of information
within seconds, thereby propelling intellectual thought and facilitating the
spread of information. From 1990 to 1997, the estimated number of Internet users
grew from around 1 million to approximately 70 million[1]. The Internet enables a simple user to connect to a local
Internet access provider and hop around the globe from one site to another at
the cost of a local telephone call. While an underlying collection of networks
makes up the Internet, various applications designed to work with Internet protocols
provide facilities to Internet users.[2]

{4}It is precisely here that the Internet Service Providers play a significant
role. With the growth of the Internet, Intellectual Property Right,[3]
("IPR"), abuses have grown many times over.[4]
The intellectual property owners complain that they are losing millions of dollars
because of the online copying that the Internet facilitates. Furthermore, they
fear that the growth of the Internet will aggravate this existing problem. Thus,
in almost all IPR violation cases, the accessed ISP will be added as a respondent.
This has created a sense of uncertainty among ISPs who feel they are being made
scapegoats through no fault of their own.

{5}First of all, a brief examination of Internet Service Providers
is useful in gaining some perspective; these are companies or
corporations that enable clients to connect to the Internet. Just
as in any other business, ISPs may range from conglomerates to
small companies having only a handful of clients. Quite often,
the ISPs provide their clients with facilities to create client
literature or other articles and make them available over the
Internet to the general public - a function ISPs proudly term
as a "value-added service." Typically, an ISP provides
its clients with more than just an email account and access to
the web; it offers facilitation to upload files (including web
pages) to the ISP's publicly accessible servers, enabling users
to access these files.

{6}From the early nineties, the Internet has grown at an exorbitant
pace. Initially, cyberspace consisted of fewer than 50 World Wide
Web sites; computer scientists and physicists used the majority
of these sites. Today, the Internet is no longer reserved for
researchers, and it is anticipated that within five years international
commerce on the Internet could reach $3.2 trillion.[5]

{7}In the past 96 months the number of Internet users has risen
from hundreds to millions of users.[6]
Some experts expect this figure to reach one billion by the year
2008.[7]

{8}While the Internet has helped artists, educators, researchers,
and publishers explore and conquer their markets, the very same
technology also makes it possible for copyright pirates to copy
and distribute anything present on the Internet, while remaining
both anonymous and undetectable. Copying is the easiest thing
one can do on the Internet, and so has become a valid concern
for IPR holders who urge that something be done quickly to address
this menace.

{9}Identifying the individual who posts allegedly infringing
material is not an easy task, whereas spotting the ISP is quite
simple. Even if the offending individual is caught, there is no
guarantee that he will have the resources to pay legal damages.
ISPs, on the other hand, are in a position to pay with the profits
the ISPs make from the pirates' use of the Internet.[8] Therefore, copyright holders target ISPs
out of sheer pragmatism. Additionally, in comparison to an independent
publisher or author, an ISP is in a much better position to supervise
how its subscribers make use of the Internet.[9] Both of these factors make the ISPs especially
culpable in the eyes of the law.

{10}In response, ISPs claim they are passive carriers, just
like telecommunications companies, and therefore should be given
some degree of immunity from copyright infringement liability.[10] Furthermore, they contend
that making ISPs liable for pirates' IPR infringements could have
a crippling effect on the growth of the Internet. One thing is
pretty obvious here, smaller ISPs that lack deep pockets will
not be able to fight time-consuming and costly courtroom battles,
and ultimately they will be forced to wind up their operations.

{11}The liability of ISPs in copyright infringements is a topic
which has generated a lot a fiery debate throughout the globe.
But here they will be disappointed, because the U.K. courts and
legislators haven't much to offer on the topic. In fact, it is
the case law and legislation of the U.S. that provides the only
adequate direction. To be sure, Americans have adopted many laws
addressing the threats from cyberspace; the Digital Millennium
Copyright Act 1998 and the Anti-cybersquatting Consumer Protection
Act 1999 are good examples. Apart from the U.S. legislation, the
latest Australian legislation, the Copyright Amendment (Digital
Agenda) Act 2000, took effect in March 2001. It is also given
adequate coverage in this paper to highlight ISP liability there.
This paper also endeavors to address the position in Canada and
the latest legislation in Singapore dealing with the liability
of ISPs. While India has enacted the Information Technology Act
2000, yet the Indian position on ISP liability remains vague.
A survey of various information technology laws around the globe
will help to correct some of the latent deficiencies of the Indian
Information Technology Act 2000.

{13}The very first case regarding an IPR violation committed
on the Internet came in 1993. But that case, Playboy Enterprises,
Inc. v. Frena, only dealt with the liability of a Bulletin
Board Service (BBS) operator, rather than that of an ISP.[11]

{15}To succeed in proving direct infringement, a plaintiff
must prove that he is the owner of the said work and defendant
had indulged in copying.[12]
It is pertinent to note that a finding of direct copyright infringement
does not require proof of knowledge or intent to infringe, but
only proof that the defendant's acts violated one of the copyright
holder's exclusive rights;[13]
the right to make copies is an exclusive right of the copyright
holder. A defendant becomes liable for contributory copyright
infringement if he, "with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct
of another."[14] A
defendant is liable for vicarious copyright infringement when
the defendant has both the right and ability to control or police
the infringer's acts and receives a direct financial benefit from
the infringement.[15]

{16}In Gershwin Publ'g Corp. v. Columbia Artists,[16] the defendant, a BBS operator, stored many pictures
on a proprietary electronic bulletin board. Among them were copies of the plaintiff's
copyrighted ones. The defendant contended that he did not personally upload
the photos and removed the infringing ones when he came to know about the matter.
The court rejected the proffered defenses and held him liable for infringement.
The Second Circuit applied the rule in Frena as support for its decision
stating,

It does not matter that Defendant Frena may have been unaware of the copyright
infringement. Intent to infringe is not needed to find copyright infringement.
Intent or knowledge is not an element of copyright infringement, and thus
even an innocent is liable for infringement; rather, innocence is significant
to a trial court when it fixes statutory damages.[17]

{17}Because knowledge is not an element of direct copyright infringement, the
court stipulated a standard that the mere creation and/or operation of a BBS
is enough to establish direct infringement liability when copyrighted materials
are stored on the system.[18] This position was reaffirmed in Sega
Enterprises Ltd. v. MAPHIA.[19]

{18}One decision confronting ISPs was the one in ReligiousTechnology
Center v. Netcom.[20] In that case,
the defendant, Dennis Erlich, was a former minister of the Church of Scientology,
who later became its vocal critic. He was also a subscriber to an online BBS
called "support.com" which functions as an online forum for discussion
and criticism of the Church.[21] The
Netcom, one of America's largest ISPs, helped the BBS to access the Internet.
Mr. Erlich posted portions of works for which the plaintiff held copyrights
onto the BBS. Initially, Religious Technology Center asked the BBS and Netcom
to remove Erlich's matter from the Internet. Both refused, so Netcom was also
joined as a party.[22]

{19}The first requirement for satisfying a prima facie case of copyright
infringement is to show that the defendant made a copy of a valid copyrighted
work.[23] The court painstakingly examined the intricacies of the
Internet and found that the Internet operates by making transient copies of
documents on every computer/system that transfers, receives and/or opens those
documents.[24] Thus, the court noted
that although copies had technically been made, the ISP had not initiated the
copying of the works.[25] The only thing that the ISP had done was to integrate a
computer system into the Internet. The court stated, "[I]t does not
make sense to adopt a rule that could lead to the liability of countless parties
whose role in the infringement is nothing more than setting up and operating
a system that is necessary for the functioning of the Internet."[26]Thus, the claim of direct infringement was dismissed.

{20}The court also looked into the aspect of secondary liability of the ISP.
The plaintiff had to prove that Netcom had the authority and ability to check
the infringer's actions and also received a direct financial benefit from the
infringement.[27]
On the latter point, the court noticed that the monthly subscription fees of
the ISP did not register any increase, and so the court held that the ISP did
not receive a direct financial benefit from the infringement.[28] The ISP was absolved of any vicarious
copyright liability, but on the aspect of contributory infringement the court
held that the question of whether Netcom encouraged the client to post infringing
materials should be determined at the time of trial.[29] Unfortunately,
from an academician's point of view, the case settled before trial. But, the
decision in this case made it crystal clear that an act of volition is a prerequisite
to copyright liability. This was surely good news for American ISPs.

{21}After the RTC v. Netcom decision, some cases regarding infringements
on the Internet have been reported, but they did not deal solely with the liability
of ISPs. Instead, they dealt with the liability of BBS operators. In one such
case, Playboy Enterprises, Inc. v. Hardenburgh, the court held that
setting up a BBS does not violate the Copyright Act.[30] Thus, the court makes a radical departure from its earlier
stand in the Frena case.[31] Yet, after going through the facts, the court held that
the defendant was not a passive service provider- instead he was found to be
an active participant in the infringement.[32]

{22}In addition to holding him responsible for direct infringement, the court
also found the defendant guilty of contributory infringement. The court declared
that the BBS's policies had "clearly induced, caused and materially contributed
to any infringing activity."[33] Concerning the standard of knowledge
of the infringing activity, the court held that the defendant possessed at least
"constructive knowledge" that infringing activity was likely to take
place on their BBS.[34]

{23}After Hardenburgh, the U.S. Congress enacted the Online Copyright
Infringement Liability Limitation Act[35] as part of the Digital Millennium Copyright Act of 1998.[36]
At the time of enactment there was heated debate over the need to exempt or
limit the ISP industry's liability from copyright infringement. ISPs argued
that this was needed to prevent the flurry of lawsuits and also to boost the
entrepreneurial spirit in the ISP industry.[37] Those who opposed this view felt that
the ISPs performed a distinct and lucrative function for the Internet, and had
the wherewithal to minimize copyright infringement by Internet users.[38]
They argued that individual ISPs should have a legal duty to help reduce online
piracy and a legal obligation to monitor their users for copyright infringement.[39]

{24}The Digital Millennium Copyright Act (DMCA) effectively
gives legislative backing to the principle laid down in RTC
v. Netcom by codifying its ruling that passive automatic
acts shall not become grounds for a finding of online copyright
infringement. Second, the law clearly spells out the criteria
to establish a case of contributory or vicarious copyright infringement
against an ISP and makes it more cumbersome. Third, in instances
where ISPs proceed to take action against alleged copyright violators,
DMCA protects ISPs from lawsuits when they act to assist copyright
owners in limiting or preventing infringement and contains provisions
requiring the payment of costs incurred when someone knowingly
makes false accusations of online infringement.

{25}It should be noted that the law does not establish an exemption to copyright
infringement liability. At best, the law is a "limitation"
on liability taking the form of a statutory change in the remedies available
to a plaintiff, rather than a legal exemption to copyright infringement liability.[40]

{26}After the enactment, it is difficult to hold an ISP liable for contributory
copyright infringement. In order to hold the ISP liable, the law requires the
ISP to have actual knowledge of the infringement, be aware of the facts and
circumstances of the infringement, or receive notice of the infringing activity.[41] However, an ISP can escape liability
if, upon notification, it promptly acts to remove or disable access to the infringing
material.[42] An ISP that acts in good faith, and removes or disables
access to allegedly infringing material, is protected from liability under the
law.[43] Further, the Digital Millennium
Copyright Act permits the ISPs to bring claims against persons who misrepresent
the infringing activity.[44] To be eligible
for the limitation on liability for the infringing material on hosted web sites,
service providers must designate an agent to receive notifications of the claimed
infringement. The agent's name must be filed with the Copyright Office.[45] In addition to the standard technical measures, the ISP
is required to terminate the accounts of customers who are repeat offenders.[46]
Thus, the primary purpose of the Digital Millennium Copyright Act is to limit
the liability of ISPs because they perform a unique role in building the Internet.
However, these limitations can only protect ISPs if they follow the safeguards
mentioned above.

{27}The position in Australia cannot be answered without reference to the case
of Telestra Corp. Ltd. v. Australasian Performing Right Ass'n. Ltd.[47]
Although this case does not involve ISPs, the decision holds much significance
for them. In Telestra, the plaintiff played music owned by the defendant
to the plaintiff's clients while they were placed "on hold" on the
telephone. Here, the court agreed with the defendant that the transmission of
another's work through a diffusion service, infringed the defendant copyright
owner's rights. The concept of a Diffusion Right is paramount in Australian
law and is also used in judging claims against ISPs.[48]

{28}In order to come under the purview of the diffusion right,
three elements must be satisfied:

There must be a diffusion service. Diffusion involves "the transmission
of the work or other subject matter in the course of a service of distributing
broadcast or other matter . . . over wires, or other paths provided by a
material substance."[49] The music transmitted over the telephone
in Telestra, amounted to such a diffusion service.

The work must be transmitted to the subscribers.[50] In Telestra, the subscribers to the telephone
service were deemed to be subscribers to the diffusion service, because
clients who used the telephone service were placed on hold and could receive
the music transmission.[51]

The alleged infringer must cause the transmission of the allegedly infringed
material. In Telestra, the person operating the service is deemed
to be the "person causing work to be transmitted."[52]
The "person who undertakes to provide the service to subscribers in
agreements with them," is taken to be "the person operating the
service."[53]

Therefore, all three elements were satisfied, and the court
held Telestra liable for the infringement.

{29}Next the Australasian Performing Rights Association, Limited (APRA), filed
suit against a leading Australian ISP, OZEmail, that was settled soon thereafter.[54]
Based on the decision in Telestra, the ISP would most likely have lost
because all the three elements of Section 31(1)(a)(v) were present. The ISP
involved a diffusion service, it transmitted the works to the premises of the
customers, and pursuant to the contract between the customer and the ISP, the
ISP provided a service to the customer. The ISP therefore became the entity
that caused the transmission.

{30} Since the Telestra case, Australia has adopted the Copyright
Amendment (Digital Agenda) Act 2000.[55] The Act contains a new, far-reaching copyright of "communication
to the public." The Act defines communicate as to "make available
online or electronically transmit (whether over a path, or a combination of
paths, provided by a material substance or otherwise) a work or other subject-matter."[56] The functions of the broadcasters, cable
operators, and ISPs have come under the new right to communicate. The Act has
limited the liability of ISPs. In determining whether the ISP authorized the
infringement committed by a third party, the court looks at:

{31}The Act does not hold the ISPs responsible, if an ISP's only role in the
transaction is to provide the server by which the infringing material is distributed
to the public.[58] This releases ISPs from allegations of authorizing infringement
when the ISP is peripherally involved. However, in cases involving direct infringement,
the Act states that a communication other than a broadcast is deemed to be made
by the person who determines the content of the communication.[59] Since, more often than not, the ISP is
not the "person" who determines the content of the communication,
the ISP is not liable for infringement.

{32}In contrast to the decision in Telestra, the Australian legislation
fully protects ISPs as long as they do not determine the content of the material.
Further, in cases where ISPs have to authorize the material, the court looks
at the above three elements to determine the ISP's liability.[60]

{33}Canada does not have any specific statutes that deal with the liability
of ISPs. The Copyright Act in Canada has two categories of infringement: a)
direct infringement, and b) indirect infringement.[61]

{34}Direct infringement occurs when any person carries out any act that falls
within the exclusive purview of the copyright owner. These exclusive acts include
reproduction of a work or any substantial part of the work in any material form,
performance of the work in public, communication of the work to the public by
telecommunication, or by "authorization" to another person to carry
out one of these excluded acts.[62]

{35}In contrast, indirect infringement occurs where a person
knows that the work infringes copyright, or would infringe copyright
if it had been made in Canada, and

sells or lets for hire, or by way of trade exposes or offers
for sale or hire;

distributes, either for the purposes of trade or to an extent
that it prejudicially affects the copyright owner;

{36}Therefore, in indirect infringement, the infringer must
have knowledge of the existence of the copyright; while in direct
infringement, this knowledge is immaterial. To date, there is
no precedent that deals with ISP liability in copyright infringements.
However, if the existing provisions of the Copyright Act were
to be applied, the results could be interesting.

{37}Anytime that the infringing material is posted on the Internet, any or
all the exclusive rights of the copyright holder can be violated. This can draw
the ISP into court because the ISP provided the equipment or facilities to a
third party that were used to infringe the copyright. Therefore, the ISP indirectly
authorized the violation of the exclusive rights. However, in the past, the
Canadian courts have determined that merely supplying equipment does not constitute
authorization, if the supplier did not retain control over the use of the equipment.[64]
Moreover, in a recent decision, in de Tervagne v. Beloeil (Town),[65]
the court clarified that it will not infer any authorization of an illegal act
unless the supplier of the equipment has formed a common purpose with the infringer
so as to "sanction, approve, and countenance"[66]
the infringement in some way. Applying this principle, most of the infringement
that occurs on the Internet arises from users giving commands that result in
reproductions or communications of copyright works. These commands are given
through the equipment that is provided by ISPs and other intermediaries. ISPs,
however, do not have any common purpose with the infringer.

{38}Therefore, it can be concluded that if a defendant took
constructive steps to prevent the infringement, or if the defendant
had no knowledge of the possibility of an infringement, then the
defendant cannot be found to have authorized the infringement.
Further, the case law appears to indicate that "authorization"
is narrowly construed in Canadian law. It should be noted that
the above decisions do not specifically deal with ISPs; rather
they provide the courts with guidelines to determine whether an
ISP authorized the infringement.

{39}This raises the question of whether an ISP would be liable under indirect
infringement. For indirect infringement, an alleged infringer must know that
the work at issue infringes a copyright. The plaintiff bears the burden of proving
that the defendant had this knowledge. This burden of proof is difficult to
carry, because when knowledge is an essential element of an infringement, ignorance
can be pleaded as a defense.[67]

{40}Canadian courts have addressed the term "knowledge" in Section
27(4) of the Copyright Act.[68] The courts
construed "knowledge" as a suggestion to a reasonable man that a copyright
violation had occurred.[69] Once an individual has either actual or imputed knowledge
that the work may violate a copyright, the individual has the responsibility
to determine whether the work is infringing. However, knowledge alone is not
enough to create liability for a copyright violation. The defendant must also
have completed one or more of the actions under Section 27(4) of the Copyright
Act. This rule has been substantiated in Apple Computer, Inc. v. Mackintosh
Computers Ltd., where an individual knowingly financed an operation that
infringed copyrights, but had not committed any of the actions listed under
Section 27(4) of the Copyright Act, and so escaped liability.[70]
As for ISPs with knowledge about the infringing activity, they are not at risk
for indirect infringement so long as they take steps to prevent the continuation
of the infringing activity.

{41}Therefore, in Canada, although there is no current specific
legislation, the existing Copyright Act appears to be flexible
enough to deal with the challenges of the Internet.

{42}Interestingly, some Asian countries like India and Singapore, have enacted
laws dealing with the challenges posed by the advancements in information technology.
In Singapore, the Registry of Trade Marks and Patents formed an Electronic Commerce
Committee in 1998 to comprehensively study the issues involved and provide suggestions
for dealing with these issues. On August 17, 1999, the Singapore Parliament
incorporated these suggestions in a Bill and enacted the Copyright (Amendment)
Bill 1999 incorporating it into the Copyright Act.[71]
Under this Act, when the Network Service Provider makes an electronic copy of
the copyright material available on the network, it cannot be liable for infringement
if:

a. it is made available in the course of providing connections
to the copy;

b. the storage, transmission, routing, or provision of connections
is done at the direction of a user of the network; and

c. the copy is stored, transmitted, or routed without any deliberate modification
of its contents by the Network Service Provider.[72]

{43}However, if the copyright owner provides an ISP with a statutory declaration
expressing his belief of the occurrence of a copyright infringement, then it
is not exempt from liability for making the material available on the network
under Section 193C(1) of the Copyright (Amendment) Act.[73] This declaration from the copyright owner must outline
the reasons underlying the copyright owner's allegations of copyright infringement.
The Network Service Provider then has the responsibility of removing the copy
from the network or disabling access to the material on the network. If the
Network Service Provider fails to do this in a reasonable time, the Network
Service Provider is liable.[74]

{44}The provisions in the Singapore Copyright (Amendment) Act are similar to
the provisions of the Digital Millennium Copyright Act of the United States,
where the ISP has to be informed about the violation before liability can attach.
In the United States, ISPs must designate an agent with the Copyright Office
to allow copyright owners easy access to inform them of violations. In Singapore
there is no such requirement, but once an ISP has been alerted by the copyright
owner, it has to act expeditiously to remove the infringing material.[75]
If the ISP fails to do so, it can be drawn into an expensive law suit. This
is an equitable position because it tries to harmonize the interests of ISPs
and copyright owners.

{45}Currently, in India, ISPs have not been drawn into any major IPR violations.
The new Internet policy announced by the Central Government in July 2000 could
bring more service providers, in addition to existing ISPs such as Satyam, Dishnet,
and Wipro Netcracker. Therefore, in the future, the probability of these ISPs
being dragged into unnecessary courtroom battles is high. The law addressing
the ISP liability issue is ambiguous. The Information Technology Act exempts
ISPs from liability if they can prove that they had no knowledge of the occurrence
of the alleged act, and that they had taken sufficient steps to prevent a violation.[76]

{46}After reviewing some of the "cyberspace" legislation,
it is not surprising to find that the legislation in this field
lacks clarity. The Digital Millennium Copyright Act of the United
States, has clearly defined the standard of knowledge an ISP is
required to possess for it to be held liable for illegal third
party activities. The Digital Millennium Copyright Act allows
ISPs to terminate the accounts of individuals who infringe copyrights
on a regular basis. Furthermore, in the United States, ISPs have
to register an agent with the appropriate office so they can receive
information of copyright infringements. This eliminates the possibility
of an ISP being caught unaware of third party infringements.

{47}The Indian position in the "cyberspace" legislation must be made
more explicit. It must clearly require an ISP to have actual knowledge of any
infringing act to be held liable. To make it convenient for ISPs, they could
be asked to designate an agent with the requisite authority to receive complaints
regarding offenses committed on the Internet. This will ensure that the ISP
has sufficient knowledge of the abuses on the Internet. The Australian Act gives
due importance to the financial gain made by ISPs along with the nature of the
relationship between an ISP and a third party infringer. Similarly, the Indian
Act must include sections that address the financial aspect of the transaction,
and the relationship between an ISP and a third party, because this is vital
to determining the identity of the violator. The American concept of contributory
infringement can also be incorporated into the Indian Act so that if any person
"with knowledge of the infringing activity, induces, causes, or materially
contributes to the infringing conduct of another,"[77] the person can be made liable. And as in the Australian
Act, an ISP must not be held liable unless it determines the content of the
material.

{48}In order to be exempt from liability, the Indian Act requires the service
provider to exercise "due diligence" to prevent the commission of
copyright infringement.[78] The Act does not provide the meaning
of the term "due diligence." If "due diligence" means policing
each and every aspect of the Internet, it can lead to loss of privacy and can
ultimately have a disastrous effect. There is a need for a consensus on the
meaning of the term due diligence because the primary function of ISPs is to
build the Internet, not to play the role of a policeman. Consequently, "due
diligence" should be interpreted narrowly. If the behavior of an ISP is
reasonable, then that ISP should not be held liable for each and every activity
on the Internet. The laws should be pragmatic because an ISP cannot be expected
to monitor all the activities on the Internet.

{49}Although the Information Technology Act 2000 has been enacted
with much fanfare, it has failed to clarify some basic issues.
This Act requires considerable fine-tuning. Issues concerning
ISPs should be taken seriously, because any hesitation over implementing
policies or regulation of ISPs can prove detrimental to the institution
of the Internet as a whole.

ENDNOTES

[*]The author is an Indian Trademark Attorney
holding a LL.M. in Intellectual Property Law. He is, in fact, bereft of words
to express his gratitude towards Dr. K. Vikraman Nair, Professor of Law, Mahatma
Gandhi University, Kerala, India, and Dr. Fletcher Orlan Lee, Adjunct Associate
Professor of Business Laws, University of Science and Technology, Hong Kong,
for their zealous support and guidance.

[8]. WIPO Copyright Treaties Implementation
Act: Hearing on H.R. 2281 Before the House Comm. on the Judiciary, 105th
Cong. 126 (1998) (statement of Marc Jacobson, Vice President and General Counsel
of Prodigy, Inc., a leading provider of Internet access and online services).

[74]. Id. In fact, the new
amendment introduces into the Copyright Act 1987 a new 'Part IXA' on 'Works,
or Other Subject Matter in Electronic Form', comprised of sections 193A,
193B, 193C, 193D, 193E, 193F, and 193G. Id.

(2) http://www.tkhr.com/articles/kmspa.html
Provides a discussion of the settlements between Software Publishers Association
and several companies for software infringement. Also discusses holding an Internet
service provider liable under a theory of contributory copyright infringement.